ND Books and Law Review Articles

An Analysis of Authorities: Traditional and Multicounty, 71 Mich. L.R. 1376 (1973)Category: ALLSub-category: Books and Law Review Articles
“For years state and local governments have used the authority device to provide revenue-generating services. Among the reasons for the popularity of authorities have been their ability to finance capital facilities without increasing taxes or violating state debt restrictions on local governments and the belief that they operate more efficiently that other governmental bodies because of their corporate structure and powers. In recent years, however, the jurisdictional flexibility of authorities, which allows them to be superimposed on a given area without regard to existing city and county boundaries, has become increasingly important in decisions to create them. . . . This Comment will briefly define and describe authorities in general, as well as the new multicounty authorities. Their legal status and practical advantages and disadvantages will be explored. Finally, an attempt will be made to isolate the uses to which multicounty authorities can most profitably be put in light of the conflicting goals of maximum governmental efficiency and public accountability.”

“Over the past ninety years, cities and states have increasingly shifted control and oversight over government services from elected officials to quasi-private entities, called “public authorities”. Today, public authorities perform thousands of services previously provided by state and local governments, such as mass transit, economic development and housing. In executing these services, public authorities borrow more money than all of the cities and states combined, and in some states, such as New York, they issue over 90% of the public debt.

While public authorities are authorized to perform public services, they are specifically organized around a private sector model. The most common justification for structuring public authorities around the private sector model is that the model inherently achieves an increase in efficiency and independence in the provision of government services. Despite their rapid growth and increased issuance of debt, public authorities have received little critical analysis. Further, there is no existing standard to establish whether public authorities are meeting “efficiency, expertise and independence.”

This article sets forth one such standard based on private sector norms. It evaluates public authorities based on: (1) corporate responsibility measures; (2) market forces; and (3) internal monitoring systems. Based on the analysis, the article proposes a restructuring of public services to form regional governments or municipal cooperation, rooted in collaboration and efficiencies lost in the provision of public services through public authorities.

Public/private partnerships have become a favored strategy for implementing complex urban developments in the United States and Western Europe, but the large volume of literature on the topic falls short of providing city planners, development experts, and policy analysts the knowledge needed for either teaching or practice. In the late 1970s, the blurring of lines between public and private action spurred significant intellectual debate in the U.S. literature, and concern that those financing and carrying out public/ private projects had too much influence compared to those who would ultimately pay for or be affected by the projects. As a consequence, the early literature on public/private development projects in the United States did little to enlighten. This has been changing, however, and academic literature from abroad has used inventive means to analyze public/private developments and generalize about their impacts and significance. I synthesize the case-based research on public/private development projects to extract insights and lessons for planning, deal making, and performance, concluding by recommending the additional research that I consider most needed.

This article investigates the causes of differences among the states in the use of independent public authorities. Contrary to the findings in previous work, I find that the evidence does not support the view that authorities are “borrowing machines,” created to provide better access to capital markets. Rather, the factors associated with use of authorities seem distinct from those associated with general obligation borrowing, which suggests that purely fiscal motivations are not primary determinants of the use of authorities.

Shadow government: the hidden world of public authorities–and how they control over $1 trillion of your money (1992)Category: ALLSub-category: Books and Law Review ArticlesAuthor: Donald Axelrod
Axelrod’s expose on public authorities covers the history and evolution of authorities, their evasion of state constitutional debt limits, and other ways in which they have been abused. He highlights the fact that the benefits of public authorities often accrue to bond underwriters, bond raters, attorneys, developers and brokerage firms–but only at the public’s expense. Axelrod’s solution is to get rid of constitutional debt limits and convince the public to support state debt bonds for infrastructure, capital and development projects.

The Disfavored Constitution: State Fiscal Limits and State Constitutional Law, 34 Rutgers L.J. 907 (2003)Category: ALLSub-category: Books and Law Review ArticlesAuthor: RIchard Briffault
From the article’s introduction:
“Fiscal limits, as well as positive rights, thus characterize state constitutional law. Indeed, the states’ fiscal constitutional provisions may offset the more widely heralded positive rights provisions. By giving priority to taxpayers over service recipients, these provisions can make it more difficult for states and localities to raise funds to finance public services…. This Article examines these fiscal limits and their significance for state constitutional law. I refer to these limits as the “disfavored constitution” for two reasons. First, they have been disfavored by state constitutional law scholars, who have largely ignored the state fiscal constitution in favor of other state constitutional provisions. Second, to a considerable degree, they have been disfavored by state courts, who frequently read the fiscal provisions narrowly, technically, and formalistically – often more like bond indentures than statements of important constitutional norms.”

The Effect of Constitutional Debt Limits on State Governments’ Use of Public Authorities, Public Choice, Vol. 68, No. 1/3 (Jan. 1991)Category: ALLSub-category: Books and Law Review ArticlesAuthor: Beverly S. Bunch
“This paper expands on the literature by using data from the 1980s to empirically test whether state governments use public authorities to circumvent constitutional debt limits. This analysis develops numerical estimates of the impact of state constitutional debt limits on the number of state public authorities, the scope of their functions, and the extent to which a state government relies on authorities to issue debt that is used to finance public infrastructure.” (JSTOR)